Overweight trucker tests tipping point for scales of justice

Discrimination An Oregon man's case breaks ground on the issue of obesity in the workplace

Sunday, November 06, 2005

ANNE SAKER The Oregonian

As the video played in the Multnomah County courtroom, John McDuffy searched the jurors' faces, looking for some reaction to the sight before them: a morbidly obese man, belly swaying, moving around a large truck.

The jurors gave nothing away. But those five long minutes left McDuffy feeling humiliated, as if he were on display.

Yet the truck driver from Molalla knew the jury had to see all 550 pounds of him at work. The video was important evidence in his lawsuit against his employer, a discrimination claim that now is a landmark in Oregon and one of only a few cases involving obesity to go to trial anywhere in the country.

So the video played, and McDuffy endured it.

"I didn't really think something like this would ever happen to me because I could always do my job," he said. "I thought people could overlook my size because I could prove to them I could do the job, and everything would be fine. But it's not true. It doesn't matter. What they think is what they're going to think."

Even in his own family, McDuffy, 39, did not set precedent: His 6-foot-6 father once weighed 700 pounds. In adulthood, McDuffy daily navigated the innocent questions of children and steeled himself against the open disgust of adults.

"Mostly, it's not really what I hear, it's what I see," he said. "People will pull their kids away from me and go in an opposite direction. I think I'm a decent-looking person. I'm not some horrifying monster."

"I'd always done my job"

A commercial truck driver since 1987, he worked as many as a dozen companies. The money was good, but a life of bad food, no exercise and a sedentary job made it difficult for McDuffy to fight his genes.

He moved his wife and three young children from Ohio to Oregon and in April 2003, he landed a job in Portland with Interstate Distributor Co., a family-owned company with headquarters in Tacoma and 3,000 employees and contractors.

The job went well, McDuffy said, except for the one time he went out on workers' compensation for two days to rest a sprained knee.

In mid-May 2004, his supervisors assigned McDuffy to a truck that was smaller than usual. Plus, the adjusting mechanism for the steering wheel was broken, and he could not fit in the cab. He reported the problem to the supervisors.

The next day, the supervisors told McDuffy he was suspended without pay until further notice. The news stunned McDuffy.

"I could see them suspending me if I did something wrong, or if I couldn't do my job," he said. "But I'd been there 14 months. I'd always done my job. I did whatever I was asked to do."

He was summoned to a meeting with Lani Dalich, Interstate's human resources director. McDuffy said she told him that the company was concerned for his health. She did not talk about how he did his job.

At the end of May, the supervisors found McDuffy a bigger truck. But 10 days later, Dalich suspended McDuffy again until a doctor pronounced him fit to work.

Dr. Timothy Craven determined that McDuffy was morbidly obese at twice the ideal weight for his height of 6 feet. In a report to Interstate, Craven wrote that although McDuffy probably could not operate a forklift, climb up and down from a trailer or handle freight, he could drive a truck.

Interstate's lawyer in Portland, Alan Lee, then asked Craven whether McDuffy posed "a direct threat" to himself or others. The doctor said again that McDuffy's abilities were limited, but he could drive.

Still, Dalich told McDuffy that he would remain suspended. McDuffy opened the telephone directory and picked a lawyer, Michael J. Ross in downtown Portland.

McDuffy hoped that one sharply worded letter from Ross would quickly put everything right. But the company did not respond for weeks. Finally, McDuffy applied for work at another company. Just before his job interview, Interstate told him to report to Craven's office for a physical capabilities test.

With Ross and Lee present, McDuffy performed a series of tasks: lifting a 80-pound box and placing it on progressively higher shelves, getting in and out of the back of the trailer; climbing into the driver's seat then dismounting. When he hit the ground and released his grip on the door, the cab shook.

A video camera caught it all.

Once more, Craven said McDuffy should not handle freight but could do " all the essential duties of his job as a truck driver."

Interstate reinstated McDuffy as a truck driver. But the company also required him to unload freight almost every day.

The company also would not pay the $8,500 in wages McDuffy figured he would have earned if the company had not suspended him.

McDuffy sued.

Company's concerns

He still did not understand the company's behavior. But in the pretrial process known as discovery, he got a hint: Interstate was worried about another obese employee.

His lawyer, Ross, obtained a May 2004 e-mail to Dalich from Tammy Warn, Interstate's director of risk management, about her observations of the obese driver at a company safety meeting. Warn wrote that the man's "excessive girth" was a problem because "The steering wheel must have free mobility to safely turn the vehicle. His protruding belly gets in the way of the steering wheel."

"In conclusion," she wrote, "he is simply too obese to operate a commercial motor vehicle safely." Six days later, McDuffy was suspended.

While the lawsuit moved forward, McDuffy did his job. One day in January, he bent to pick something off the trailer floor and felt a pull in his back.

The painful muscle strain put him out on workers' compensation for months. Later, the company informed him he was no longer an employee, but his lawyer promised he would work to get his job back after the trial.

The workers' compensation ended, but McDuffy still could not work. With no money coming in, the family relied on the generosity of friends and neighbors in Molalla.

In late September, his trial began in Courtroom 410 with the Circuit Court jury watching the video of McDuffy moving around the large truck. The embarrassment overwhelmed him.

"On the way home," he said, "I pretty much lost it."

His lawyer introduced the Warn e-mail and argued the document led Interstate to discriminate against McDuffy even though he was not the driver Warn had observed. The lawyer asked for McDuffy's back wages and $100,000 in noneconomic damages.

Interstate's lawyer, Lee, said the company acted out of concern for public safety. At the end, Lee replayed the video and froze the action on a shot of McDuffy's belly, leaving it clearly visible to the jury during his closing argument.

The jury deliberated for less than four hours and brought in its verdict Oct. 5. McDuffy remembered hearing that he had won but he did not know what that meant until Ross leaned over and whispered, "They've given us everything."

The total award: $109,000.

McDuffy and Ross stuck around the courtroom, still amazed. Then 11 of the 12 jurors stopped to talk.

"They were proud of themselves," Ross said. "They were appalled at the way (Interstate) treated John. They told us, 'We wanted to send a message that you can't do this to people.' "

Each juror shook McDuffy's hand and wished him well. More than one said he was courageous.

"I was petrified the whole trial," McDuffy said. " I don't consider myself brave. I don't know what that means. I just did what I had to do, I guess."

Anne Saker: 503-294-7656; annesaker@news.oregonian.com